8th Annual Stevens Lecture, featuring Elena Kagan, Associate Justice of the U.S. Supreme Court

well I don't know if that's ever happened before good evening everybody for those of you don't know me my name is Jim and i--i I am the Dean of the University of Colorado law school I'd like to welcome all of you to the eighth annual Stephens lecture featuring a discussion with the United States Supreme Court justice Elena Kagan I'd like to begin the event by acknowledging the Arapaho and youth people on whose traditional territory we are gathered I'd also like to take a moment to recognize a few distinguished guests who are in the audience first of all I'd like to welcome University of Colorado's president mark Kennedy also here is our provost and executive vice chancellor that is the Provost of the cu-boulder campus Russell Russell Moore we also have with us three of our Regents of the Colorado Board of Regents the University of Colorado Board of Regents John Carson hi reading Griego are you Gregor and Sue Starkey and one of our owns that is the law school zone Colorado Attorney General and former dean of the law school Phil Weiser welcome I'd also like to recognize members of the federal and Colorado judiciary who are here as well as a number of elected officials welcome to all this evenings event is organized by the law schools Byron are our white Center for the study of American Constitution law which was founded with a generous request by Colorado law alumnus IRA C Roth Berger jr. the center nay the center's name honors the late US Supreme Court justice Byron R quite a Colorado and who made a mark on the country's legal landscape with his work on many of the prominent constitutional issues of his day true to justice White's legacy the work of the center is premise on the belief that in informed and engaged citizens and an ongoing conversation around the Constitution are essential to our democracy no doubt we are at a time when this conversation and a collective commitment to constitutional values have elevated importance the center's John Paul Stevens lecture is named for another prominent US Supreme Court justice justice Stevens were regrettably passed away just a few months ago this lecture series is a tribute to his exemplary and courageous service on the bench and stature as one of the gems of American jurisprudence the Stephens lecture brings to the campus each year a distinguished jurist to contribute to the life of our community we are fortunate to have welcomed in previous years several outstanding judges including a number of US Supreme Court justices who have enriched our community with thought-provoking insight into the role of our judiciary and its highest court in the nation's legal and related political and social orders the US Supreme Court of particular has a monumental roll it endeavors to guard the values and architecture of liberty equality and solidarity found in the Constitution and it does so against the excesses of majority will partisanship or presidential overreach the Supreme Court however is made of not made up of nine individual human beings each with her or his individual perspective on the balances struck in the Constitution and on the precise guideposts of constitutional decision making we are most proud to have one of these nine with us this evening this year Stephen Stephens lecturer is the Honorable Elena Kagan Associate Justice of the United States Supreme Court notably justice kagan replaced justice Stevens on the Supreme Court after the late Justice announced his retirement and President Barack Obama appointed her to the court immediately prior to joining the Supreme Court Justice Kagan served as the first female Solicitor General of the United States and in that position she argued on a number of important cases to the Supreme Court she's had a storied legal career since graduating from Harvard Law School not only in public service but also in the private sector and the Academy she was a law clerk for Justice Thurgood Marshall served President Bill Clinton as well as President Obama practiced law at the power house firm of Williams and Connolly in Washington DC and was a professor at both Chicago Law School and Harvard Law School eventually serving as dean of Harvard Law for five years the blog Oh a comments that Justice Kagan brings a fresh perspective to the Supreme Court based on her prowess with technology and pop culture and I would add I would add that she also brings to the court a wisdom grounded in a love for the law and the Justice it can yield and an awareness of the people and world that it touches joining Justice Kagan on the stage this evening is the director of the Byron white Center Provost professor of civil rights law Suzette Malvo professor mal BOE is a nationally recognized expert and frequent commentator on civil rights and class action litigation she joined the University of Colorado law school just over a year ago from Catholic University of America and since then her commitment to cutting-edge scholarship innovating teaching and public service have contributed to the life of the law school after a discussion with Justice Kagan professor Malvo we'll take a few questions for the Justice that have been submitted by Colorado law students in advance I've been asked to address a few householding matters before I welcome Justice Kagan and professor Malvo to the stage first of course please make sure your cell phones are turned off or on silent now I feel like I've turned into you know someone a Dean who's trying to keep everybody in order also photography is not allowed except by accredited members of the press who receive permission to take pictures and finally at the end of the event of the event please remain seated until justice kagan and professor Malvo exit the stage it's now my pleasure and honor to ask you all to join me in welcoming to the stage United States Supreme Court justice Elena Kagan and professor Suzette Malvo [Applause] thank you I can't see anything but it looks like there are a lot of you here so I'm very honored it's great to be here there are about over two thousand I think so there's great demand for you to be here so it's such a such an honor so thank you so much for being here we're absolutely thrilled that you're here for the Stephens lecture one of the special things about you being here for the Stephens lecture as the Dean mentioned is I know that this this lecture is actually named after Justice John Paul Stevens who was your predecessor on the bench in fact he gave the first inaugural lecture in 2011 uh-huh and I've heard you speak eloquently at his funeral service and elsewhere about how youth you fill his seat on the bench but you can't fill his shoes too large yeah can you tell us a little bit about his influence on you and what it's like to carry forward his legacy yeah I mean it was it was so sad for me and for all my colleagues this summer when he passed away he was a great great man and I never had the chance to serve with him so unlike many of my colleagues I can't tell stories about what it was like to be on the bench with him or in conference with him but he is and long has been a hero of mine he has a passage in in in one of his books about how he was honored to take the place of Louis Brandeis on the court in the court there are like particular seats and everybody knows which justices have filled those particular seats and I sit in a seat which went Louis Brandeis and bill Douglas and John Stephens and then me which is quite extraordinary but John Stephens I mean if John Stephens felt that way about Louis Brandeis I feel that way about John Stephens he was a man of extraordinary brilliance but even more of extraordinary wisdom which is not the same thing he was a man of great integrity he was a man of great independence I mean he always did what he thought was right don't matter what and sometimes that meant that he went his own way and was you know and wrote an opinion that nobody else signed on to or voted in a way that nobody else joined but that was okay with him that that he had his own view of the law and he stuck with it and was extremely independent minded he was a deeply kind person which I think all his colleagues appreciated as well as his clerks and everybody else in the court I think in terms of his judicial legacy what he'll go down in history for is a deep commitment to the rule of law to the principle that no person however high or mighty is above the law there were all subject to the same legal rules and and the accompanying principle that you know whether you're powerful or whether you're powerless what you know the most humble person the poorest person the least educated person is entitled to be treated by the legal system with the same dignity as the rich and the powerful and and for me that is that is a great legacy of a magnificent 35-year career on the court you know that's really really important yeah absolutely I I have to ask this question because we have lots of students in the audience so can I get a show of hands for the students that are here okay great Wow good see you awesome all right we have a lot of students and you're all in the front too which is fantastic you got the good seats I don't know who they put up there the students are our VIPs okay that's the way it should be what's the law school about except for the students right exactly so everybody else is there for this is for the students really so I think they're kind of dying to know what you know why did you go to law school what it was like for you to be a law student and if you could give some advice to our law students about approach to law school or entering the legal career especially at this time period yeah I went to law school for all the wrong reasons just thank God being honest about that I was once in one of when when I was a Dean I was talking to a bunch of college students about whether they should go to law school and I was saying all these kind of formulaic things about how you should really think about this is whether this is what you want to do and you shouldn't go to law school just because you can't think of anything else and because you want to keep your options open and as the words were coming out of my mouth I was thinking I don't know I went to law school because I couldn't really think of anything and I wanted to keep my options open so I don't really prescribe this as a as the way to approach this decision but I'm here to say that even if you went to law school for all the wrong reasons like that you know when when I started law school I just loved law school from the beginning well and and that make me weird I don't know don't make any of that okay from my very first day and I love Law School because it combines two things one is that you know I loved the thinking that law school demanded I loved the kind of analytic rigor that law school demanded I loved the sort of logical puzzle kind of enterprise that law is you know trying to think through complicated legal problems sometimes arcane legal doctrines and sort of figuring it all out in the way that you might figure out a crossword puzzle but I also loved that this was not an abstract or sterile enterprise that this was a way to make a difference in the world and that it was very obvious to me in my law school classes how it was that law was about the betterment of our society about the advancement of human welfare okay I am the wrong person to help with technology trust me I try not to move my head too much from now on yeah I think so and you know so that had this real really practical aspect to it and and that you could see how it could make a difference in the world and how a person using it could make a difference in the world so that's what I loved about law school what I guess what I would say to students about about what to do with their years in law school and how to think about their legal careers is you have this great opportunity to find out in law school what really moves you what makes what are the kinds of things did you really care about and they'll be different for all of you but but if you come out of law school with a sense of look this is the kind of thing that if I worked on I couldn't you know I would want to go to work every day and I would feel as though I was doing a job full of purpose and meaning I mean that is a great thing to come Losco with and not everybody does you know some people find it later on in their legal careers but to try to use law school as an opportunity to experiment in different things and an opportunity to try to find that passion that sense of you know if this is really what I care about and to not be so worried about planning I am a big anti planner because I think most law students are planners and most of you will plan enough and if you every once in a while think to yourself no justice kagan told us not to plan it will be a good corrective because I think actually that most of the best things that happen in people's legal careers and when I think of people whose legal careers I sort of look at and say wow to live lead a life in a law like that it's mostly luck and serendipity I mean of course you make your luck and there are ways of putting yourself in a position to be offered certain opportunities but you know for the most part things come out of the blue I think and that's the way life works and and I think too many law students and young leave lawyers put themselves on this plan well first I have to do this and then I have to do that and that prepares me for the next thing and they'll sort of say no to opportunities that sounds really fun and exciting and interesting because it's not on the plan and because they worry about if they leave the plan how do I get back on the plan and I think the most fun and interesting and exciting parts of most legal careers or when people do leave the plan and they just sort of look you know they noticed something and they say you know I never considered that for a minute but but gosh that that looks a lot more fun than what I'm doing now and and and I don't know you know what I mean I really think that the best legal careers are the ones that are guided by a sense of is this more fun than what I'm doing now I think I'll go do that then you know and and and that makes sense so your career I knew I think have been looking around for a lot of fun right so if I just think about your career the way it's gone I mean it seems you know you start off at Harvard Law School is the the Dean sort of did a great recap here and then you know York lurking on the DC Circuit and then your clerking for Thorogood just Thurgood Marshall on the Supreme Court and then it's jumping to teach at University of Chicago and then teach at Harvard Law School and think I'll become the Dean and then Solicitor General and then Supreme Court justice I mean in some ways shift a few - oh yeah I did we only have so many time I couldn't keep a job really right you know saying every four years I was off doing something else you know now I'm looking forward to keeping this for a while good so so from an outsider's point of view it looks like a dream life right like wow so I'm I'm interested in the times you failed yeah can you tell us about those and how you deal with disappointment yeah it's like you look at my resume and you see all the jobs I got and you don't see all the jobs I didn't get yeah and it's truly I mean for every job I got there were two that I didn't get and that I was disappointed about not getting and starting from law school so law school I did very badly my first semester I thought oh my gosh you know Law School has finally outed me for the fraud that I have always been you know and it wasn't true right you know I sort of turned myself around and figured it out and there's nobody who has nobody who I mean maybe somebody you know that I I have floated around a lot you know you know some people that more like you don't going to do one thing and get one job and it's going to be perfect and then I'll do that for my whole life and if that's what makes you happy that's fantastic but if if you're more like me and there were plenty of jobs I didn't get along the road I mean one job I didn't get was Bill Clinton nominated me to be a judge before and in the Senate didn't give me a hearin and I never became a judge you know there were other jobs in governments that the the I didn't get when I was Dean at Harvard I was considered to be president of the University and I didn't get that I mean you know sort of all along the road and some of these were high-class disappointments I don't want to say and you know but but I don't know I think you know I'm a big believer in you just can't let disappointments get you down too much I'm a bit I sort of I know it's a little bit of magical thinking but but I'm a big believer in the idea that when a door opens when a door closes a window opens and it may be the best thing that ever happened to you that you didn't get a job that was true of my of when I was nominated to be a judge I was quite young at the time I was in my late 30s I had just worked for four years in the Clinton White House and I thought I really wanted to be a judge and and the Senate thought otherwise you know I spent the next decade doing all kinds of things that I've really enjoyed and I became it justice anyway you know so worked out fine yeah yeah so I want to turn our attention to so we obviously we have a lot of folks here in Colorado and there there are certain legal issues that are salient in a square state like Colorado what I'm thinking about really is Indian law water law environmental protection those sorts of things and wondering what your approach is how do you go about educating yourself when it comes to sort of those complex areas of law but then also other cultures that you may not be intimately familiar with so how do you how do you educate yourself and your colleagues to address those matters yeah it's interesting that you said sort of here you are in the West and there are certain areas that I remember oohs about my fourth year on the court I was assigned an opinion by the Chief Justice and it was an it was a ward of law opinion involving Kansas and Nebraska and Colorado Colorado was sort of a more bit player in the litigation it was really a dispute but in Kansas and Nebraska and I do remember thinking I know nothing about this you know it's like these big square states that have water problems and I grew up in New York City I went to school in Massachusetts you know water law was not really high on the curriculum so I think you learn it the same way we there's so many things we don't know I mean you know Bordelon might be one of them I once wrote in a opinion and I think my next year super complicated thing about electricity regulation which I knew nothing about so there are those kinds of things but actually it happens all the time that there are things you don't know that there are perspectives you've never encountered you said cultures you've never experienced right and I think you're just under an obligation to keep learning as a justice or a judge and you know just going back to your first question about John Stephens when I got to the Supreme Court I asked justice Stevens for any advice he might offer me and he's a very humble man and I don't think he much liked giving advice but finally if you really like I really tried to push him and and he said I think the best thing that I ever did was that I tried to learn something new every single day I was on the court and you think about that this is a man who served on the court for 35 years right you could be forgiven for saying around year 34 I think I've learned it all you know but he never did and I think that that's the attitude that justice has to take is that there are all kinds of things in this world and in the law that I don't know and to keep an open mind and to figure out how to learn about them you know to know what you don't know and to have strategies for learning about them and that might come in the context of one particular case or it might come in a broader context but but I think that that's the the John Stephens advice to just you know think about all the things you have to learn and then go out and learn them is the way to be a judge I hear you and I think one of the things that that really brings up sort of an important issue of diversity right diversity on the court as you know the court as a whole does not reflect the demographics of American society if we look at the justices themselves many are pellit lawyers come from a very small number of law schools only three women on the ban tonight do say only and not not a lot of diversity when we look at race and religion and ethnicity and even Geographic you know the geography and so I'm wondering what role do you think if any people's experiences and backgrounds shapes how the court makes its decisions and is there any good example an example what you think it really mattered yeah well in general I would say yeah I'm a big believer in diversity in the judiciary but but for a different reason than that which I'll come back to in general I don't think diversity necessarily means that you'll get a different set of views on the court I mean if you think about like women women have there are lots of women in the world and they have all kinds of different views and you can there can be in my colleague Justice Ginsburg was once asked like you know how many women should there be on the court and she said nine how about that but you know whether it's five or whether it's nine you could have nine women who all had views like me or you could have nine women none of whom had used like me or you could have some mix right because they're just women disagree on a lot of different things all you have to do is look around the u.s. judiciary and you'll find women on every side of most legal questions so I don't really think that and what I think about in conference I've been on the court now this is my tenth year I can't think of all that many cases where I thought to myself this would come out differently if only there were more women here the time when I'm the the time when I most thought that where I most sort of thought oh my gosh this is you know it there really is a different perspective here yeah I have to go back sort of ten years ago and I was Solicitor General at the time and that at that time the court had only one woman on it it was the year before justice Sotomayor arrived so it was only Justice Ginsburg and there was a case about a 13 year old girl in a junior high school who was strip-searched because she was thought to have marijuana or some other kind of drug on her and she was strip-searched by these bales school administrators and I would say that it was not the greatest day on the bench for the Supreme Court because you could see Justice Ginsburg in the questions that she asked you could see that she was kind of she had like a picture in her head of what this was like and what it would feel like if you were that 13 year old girl and but she was really the only one and some of the men on the court we're not having the court finest hour and we're sort of choking and you know just sort of not appreciating what this would have seemed like to a thirteen-year-old girl and there was a lot of commentary on it at the time all deserved I think in but then you know they went back into the conference room and I don't know what happened there but they came out and justice Ginsburg's view which was that it was an unconstitutional search that view prevailed by an extremely lopsided vote so so in the end she was able to convince people that this was a serious matter even if they were kind of you know ha-hi on the bench but I you know I think that as I said before you can you can find people of all kinds of different views there were women there were African American who were Hispanic I think the more important reason to have diversity on the court is is because I think it you know the court in the end is supported by if the court doesn't have legitimacy with the American public the court can't do all that much and the court won't be taken seriously and and to have legitimacy with the American public I think one part of that it's not the only part by any means but one part of that is that the court should that you should people do all kinds of different people should be able to look at the court and say I see somebody there who looks like me who thinks the way I do who has experience of the kind that I had and and that's the kind of thing that gives the court public legitimacy so I I sometimes you know I sit in the courtroom and I see all these school groups who come into the courtroom and I think you know this is so great there were only three of us but the three of us are pretty vocal on the bench or not we don't by any means fade into the background yeah and I sit on the left and justice Sotomayor sits on the right and Justice Ginsburg sits on the middle and so there are women's voices coming from all over and I think this is fantastic that all these girls are listening to this and all these boys are listening to this and it says something about how women can be in the legal profession and in society and and I hope that it you know some of us serve as role models for for people who you've heard you know children and teenagers who you know and even you guys who look at the cordons and and and and and see somebody who they can relate to um so I want to turn to a an issue which you have actually written about already the confirmation process in the past you have criticized the confirmation process as you call it a vapid and hollow charade those are your words okay so what are your thoughts now about the process today and what do you think are some of the most important attributes of a Supreme Court justice Louis I should be a little bit of perspective about when I said those words sure before I went through the process I mean quite a bit before I wrote an article on the confirmation process when I was a professor at the University of Chicago so as when I was a young professor I was in my early 30s and I had just come back from a summer that I spent working for Joe Biden who was then the chair of the Judiciary Committee and he had done confirmation hearings for Ruth Bader Ginsburg and Joe Biden had a practice that he would invite for every confirmation process that he was the chair of the Judiciary Committee for he would invite an academic out and have the academic work with his team and think about what kind of questions to put to the nominee in and so forth and I was the academic one summer for the confirmation of Justice Ginsburg and I found it a terribly frustrating affair really because Justice Ginsburg was remarkably good at never answering anything so you know years and years later I really tried to emulate that of course but at the time it didn't seem like such a great idea to me and and I wrote this piece and and so what I became a nominee it was this piece was a very troublesome for me because every time I said you know senator I really can't answer that at route they would say you know you wrote this article calling the nomination process of rapid and Talos garage yeah charade and so that was inconvenient but I will say I mean like having been through in the process and having come out the other side I guess I can't have too many criticisms of the process it works you know but I think it's it's actually a pretty frustrating thing for everybody concerned in it and and I don't quite know how to fix that I have no silver bullet to tell you how to fix it because you know the Senators for the most part they just want to know how people are going to vote on different things and and I don't but rush them that I mean we we decide very important matters and I think probably for a senator I said well don't make me guess you know and you know you know tell me what you think of x and y and z and for the nominee number one this is really not a good path to be confirmed number two there were certain kinds of ethical rules that nominees have to follow and and you know I found that when I was a nominee what I really tried to be aboveboard and open about was the the way I thought judges should act was my theory of constitutional interpretation where my theories of statutory interpretation Taoiseach I really tried never to end the conversation I really tried you know as much as a senator wanted to ask me about those things to be open and forthcoming about them but I think you know the senator has gone all of them are lawyers to the extent that they are lawyers they haven't really thought about some of those questions in a long time and they kind of want to know like how you're gonna vote and so it's it's just sort of ships passing in the night I think and it's hard to to really have a process that works for everybody that works for the nominees and it works for the Senators and again I don't really have a great solution to it I'm being the qualities of a that should be looked for I wouldn't say that senators should be uninterested in how people are going to vote and then it's actually pretty important part of who would justice is going to be so I wouldn't count that off the table but if you put that aside I think the qualities are the kinds of qualities that I talked about when I talked about justice Stevens is integrity and independence and wisdom and open-mindedness and you know obviously knowledge about the law but but more those kinds of you know is this a person who's going to keep learning and is this a person who's going to keep an open mind and is this a person who's not afraid to be independent and go out on a limb sometimes and is this a person maybe most important who will be honest and who will have a lot of integrity in the way they approach decision-making I mean I think that that's what you should look for just sort of lighten it up a little bit I think one of the one of the things that I've learned is the Washington press has identified you as the hippest justice and it might be a low bar I wasn't gonna say that you said it right so first of all is it true well I don't know like what qualifies me except really I don't think so so I'm wondering what you think accounts for that you have a reputation that's out there I've seen I've seen different things that might be your love of you know video games comic books you've been called Special K you know so can you help us out here I once wrote this opinion that had a lot of comic book references in rate right because not just because I put them in gratuitously it was an opinion about was a patent case and the patent was on this glove that you put on and then you went like this and webs came out of the fingers right yeah so so I once wrote an opinion full of spider-man references yes so maybe that's where it comes from and I've heard you've coded dr. Seuss so there you go I just actually somebody just sent me today does anybody read my opinion in Yeats yeah the fish is a fish a tangible one fish two fish so somebody you know become I've now become associated with dr. Seuss and particularly one fish two fish yeah at the end of every year when clerks asked justices to sign various things you know mostly justices are asked to sign photographs of themselves and I'm asked to sign one fish two fish so so maybe maybe that accounts for it somebody just sent me by email today I'm not going to say this so so people know that there is there are strong friendships on the on the on the bench and I know that you have taken really strong opposition in terms of your positions against your colleagues in terms of their point of view how does that impact the way you interact with one another and what kind of institutional mechanisms are our present that actually support and promote your ability to continue to have deep friendships with people that you vehement ly disagree with yeah I mean I'd like to thank that I know how to write a strong dissent and I'm not the only one of on the court who knows how to do that so we do write some strong words about each other but but you're quite right that we remain you know we have very good relationships on the court it's a quite collegial institution and there are really good friendships on the court among people who disagree with each other about many things so why I mean you know partly it's to colleague my old colleague who I missed quite a lot Justice Scalia used to have a line where he said if you take this personally you're in the wrong business and I think that that's basically true I mean look we're dealing with important matters and of course we're going to criticize each other and of course we're going to tell each other you know you got the law really wrong today but that doesn't mean that we can't think that the other person is operating in good faith and is a good person and is is you know yeah it seems to me that you can have very good friendships with people you disagree with for that matter not everybody you agree with you like right so if you don't like everybody you agree with you should be able to like some people you don't agree with right and so so I think we all get that and you know one of the things that binds us together is there are only eight other people in the world who really know what my job is like and and it's a it's a job where you can't talk to a lot of people about it and so this is in that sense it's a pretty tight community because there were y'all are in it's just the nine of us doing this thing and we're the only people that can kind of understand what the experience is like but we try to do other things we have we have we have a lot of lunches together so every time that we hear in our arguments and every time we meet in conference so this is about four times a week for two weeks out of every month what's a lot we go up to a dining room in the in the court and we have lunch together and there are rules about this lunch so the rules are you can't talk about cases and a more informal rule is that you can't talk about politics and I think that the theory is kind of we have enough to fight about we shouldn't add anything to the list so we talk about books and movies and theater and people's families and you know all kinds of things sports justice Ginsberg always likes to get us to talk about opera but nobody else really knows very much about it but I think I think it's a really good thing for the courts to do it was something was a practice that justice O'Connor really started and sort of insisted on and and I think she was a very wise person to do so that it just forges bonds of collegiality and makes people relates to each other as people and not as that person who holds views that are you know it's so disagreeable to me I do want to go back to the idea of the role of dissent right you mentioned dissent and I'm wondering for yourself how do you go about determining when it is more important to dissent than to build consensus among your among your colleagues and I'm thinking in particular about the route show versus common cause case the reason many of you know the recent case where the court was 5-4 contentiousness a very contentious decision where the court decided that the court was not the courts job to intervene or try to resolve political gerrymandering issues and in your dissent if I can quote you said of all times to abandon the courts duty to declare the law this was not the one he went on to say with respect but deep sadness I dissent so can you talk about what that was like for you yeah well I mean the in general I mean the first point about like when do you dissent and when do you try to reach consensus it's not always of course your choice it means to try to reach consensus more than one person has to do it and so so you know sometimes why is it that you aren't having any trouble with yeah you know so sometimes it's not your choice it's like you know people want to go their own way then people are gonna go their own way other times I mean I think everybody agrees that maybe this was one of these cases yeah yeah you know we the court had tried to avoid the issue at the times prior to last year's decision but when we finally got around to deciding it there were just there were really sort of like two two options and there wasn't a whole lot of room for compromise and some some issues are like that others are definitely not and I definitely don't think compromise as a dirty word in in the courts as or in any place else in fact I think it's really important in general to try to reach across perceived divisions and to try to see if you can find any common ground and if you can find any room for compromise and I like to think that it's something I do quite a lot but sometimes you can't you can't either because you have no takers on the other side or you can't because you can't because there's a matter of fundamental principle at stake and there really isn't a third way or a compromise position so you know this decision the Ruto decision was a decision and I felt very strongly about I think you was about the whether the courts could get involved in partisan gerrymandering it was not about the constitutionality of partisan gerrymandering I think everybody recognized that partisan gerrymandering of the extreme kind that we saw in two cases that came to the court one was done by a Republican legislature and one was bought done by a Democratic legislature and they and it was a really extreme gerrymander that basically deprived people in their respective states of the opportunity to have their votes meet anything it was a kind of rigging of Elections it was you know it it was representatives picking their voters rather than voters picking their representatives and and nobody really argued that this was constitutional done in this sort of extreme way but the majority thought that the court just couldn't get involved in it that the it presented no manageable standards for the court to decide when a gerrymander had gone too far and and I thought that that was quite wrong and that courts around the country had actually worked pretty hard in developing exactly the kinds of manageable standards that the that the court that the majority claimed to be demanding and that it you know if you if you it wasn't so hard to figure out exactly how these cases should be litigated and when it was that some gerrymanders should be declared off-limits like these two it was perfectly obvious that these two should have been invalidated so so I did I think I wrote a strong dissent I think it was a dissent I hope that was not so much angry as deeply saddened because you know if if if the court is not going to protect the basic structures of our democracy then it's hard to know what the courts role is and and I think the court the majority failed to do that and and I said so and I and I agree I agree that the court is is tasked with interpreting and guarding the rule of law and in light of the extreme partisan political climate that we're in the highly contentious Supreme Court confirmation process and even the significant division among the justices themselves in cases that have political implications and here I'm thinking about abortion gun control affirmative action it's hard for many Americans not to see the court as political what would you say to those who worried about the courts independence yeah well I do think people's views and concerns about this can be exaggerated which is not to say that there's not a kernel there they really ought to be taking seriously but just to sort of put in a broader perspective you know I think the that some people think the court like that it just it's this institution and it always operates by these five four votes and everything we do is like that and you know there are these and you know part of the court is conservative and part of the court is liberal and and that's all there is to say about the court and I don't think that that's right by a long stretch about half the cases that we hear every year and these are only the most important case only the most important cases were the most difficult cases they're all cases or almost all cases which have involved lower courts disagreeing with each other and notwithstanding that about half the cases we do each year are done unanimously another very substantial chunk of the cases we decide are not unanimous but they're pretty lopsided or even if they're closer the everybody's all scramble and you know there's no way to read them as like oh there's a conservative majority and a liberal minority or anything like that and I think that there are whole years that go by I mean I think last year was a pretty good example where even if you just take the five four cases there were a lot of people doing what might be perceived as unusual things making unusual alliances finding unusual bedfellows and it would be very hard to look at for example last term and and say oh that's that's just this politicized Court I don't think you could do it now I do think I don't want to dismiss the question at all because I do think that there are certain sorts of issues and they are hot-button issues in the society and they are often the issues that you know get the front-page treatment in the newspapers where there are really different ways of looking at those issues and and I don't think that that's a matter of partisanship you know you know who's a Democrat and who's a Republican but I think it is a matter of different ways of looking at the Constitution of understanding how to do constitutional interpretation different views of particular constitutional provisions so so for sure there are real differences on how do we interpret some parts of the Constitution which matter a lot to people and and I guess what I would say as to those issues is I guess part of my message would be to the court and part of my message would be to the public I mean I think that the everything I just said suggests that the court should think hard when it's when it's doing its work [Music] about you know trying as hard as I can not to look politicized and polarized and deeply divided because I think you're right we live in this polarized time and the last thing that the court should do is to look as polarized as every other institution in America I mean it would be great for the court to be seeing as not that and the only way to be seen as not that is not to be that and so I think that there's a lesson for the court and how it operates but I think there's also I guess I would also say to the American public that they shouldn't jump to conclusions so fast on the basis of you know one decision or another that we're sort of trying our hardest to to decide really difficult matters and that we're all doing so in good faith and sometimes it will look like the world is falling in because because of one decision but maybe it will look to other people like the world is falling in because of another decision and I'm not saying that people should give us always the benefit of the doubt if we don't deserve it so I think you know the the the this issue that you raised as an issue for us but but but I also think it's important for the public to recognize that we actually are a different kind of institution from the ones from you know our buddies across the street that's important thank you um so in the interest of time I'm going to ask you one more question before we turn it to the student questioners but and so this kind of goes back to your career the ideas and you've had lots of starting lines involve it at the starting line at some point and you've had many and so I'd love for you to basically tell me what that was like for just one of them I have three three options pick whichever you'd like to talk about but you've been at the starting line as a junior justice where you were for about seven years before Gorsuch joined the court you were at the starting line is the Solicitor General when you argued your very first a pallid oral argument before the Supreme Court in citizens united no pressure and then you were the first female Dean at Harvard Law School so pick one of those where you can tell us well okay one of the first two now you tell me which one you really want to hear justice alright do you justice so yeah I was a junior justice for seven years there's a pretty long stretch of time actually as these things go the the record is 11 years Justice Breyer just missed the record by about two weeks I think yeah so Justice Breyer was the junior justice for eleven years do you think well what is that thing the junior justice it turns out that the court is kind of a hierarchical institution in in some ways and not in other ways I mean we all have the same vote you know the Chief Justice's vote doesn't count for any more than my vote counts for but but in other ways it's a hierarchical institution and and the junior justice in particular I don't know how to say this other than gets hazed by everybody else so there are three things that the junior justice does one of them is semi-serious is that the junior justice when we go into the conference room and when we discuss cases it's just the nine of us we don't take any clerks there are no members of the administrative staff of the court so somebody has to take good notes so that when we come out of the room we'll be able to tell everybody else what it is that we've decided in there and then they can issue the appropriate orders and things like that and that's the junior justices job so so so that's sort of fun actually responsibility and it gives use so when everybody else leaves the conference room and goes to eat lunch the junior justice stays behind and all the administrative staff of the court pour in and you kind of deliver the news of what we've done so that's the serious role the the second role because there are only the nine justices in in the conference room it turns out that sometimes people have to bring us stuff so some of us are shall we say forgetful they forget their coffee they haven't taken the right file they haven't taken the right book so there's a phone in the conference room and you can call back to your chambers and say you know get my glasses get my coffee get my book and and somebody will come to the conference room and knock on the door knock on the outer door I should say because the conference room is really this kind of inner sanctum Holy of Holies thing it has it has one door that you open from the inside and then all you it just faces another door about two feet away and then and then somebody has to open that door from the outside so when so when somebody knocks on the door now you would think that the person let's say who forgot her coffee would go get the door right and get her coffee but it turns out not so it turns out that the junior justice has to open the door Wow and get the coffee and say who's this for and you know and then deliver it to the person who really needs that jolt of caffeine so about five years into my job I injured my foot and I was walking around with one of those big boot contraptions I don't know if any of you have ever warned them and the knock would come on the door and still everybody would just stare it you know boy she's really slow to the door these days you know so that's the second thing the third thing is that they put you on the cafeteria committee this is really their way of saying you think you're hot stuff you're a member of the Supreme Court you know you just got confirmed no you're going to be on the cafeteria committee where you are going to meet once a month with a bunch of people to discuss what happened to the good shopper chip cookies [Laughter] and then your colleagues do this stuff you know as I said we eat together a lot so your colleagues will do the stuff like there's too much salt in the soup Elena and then somebody else who said enough salt in the soup so they do this obviously jokingly but it's like no in the end they basically blame you for the cafeteria so that's the job of it you do justice and I was delighted to pass it on to justice or such who I think it's really unfair only had to be junior justice for a year Wow yeah yeah well thank you for sharing that okay that I I could continue asking you so many more questions [Applause] but because of my time we're going to end the the fireside chat portion of the evening and turn our attention to the students we have six students who have submitted questions that the Justice is taking today and so I'm going to go ahead and bring those students into the conversation and let's we'll hear from them in the interest of time maybe about three minutes for questions I wouldn't know hey no attention to the clock we're good okay and we'll go to dinner we're in between dinner oh boy alright so we do have six the students are really excited about so I'm gonna ask Leah Fujairah to come up first please right all right okay so leah is a third-year law student to editor-in-chief of the Law Review and a member of the National Moot Court team Leah please please join us Justice Kagan thank you so much for traveling to Colorado law in his opinion in Direct TV Justice Breyer noted that the fact that the controlling case conception was closely divided had no bearing on the undisputed obligation that it imposed as precedent so what effect if any does the courts unanimity or lack thereof have on the weight that we afford precedent I don't think it has much effect I mean you know we decide some things unanimously we decide some things eight to one seventy two six two three five to four in the end the court is the court and the court reaches a judgment and that judgment needs to be respected except in the unusual circumstances when when people decide that it's appropriate to overrule precedent but but whether it's nine to zero or five to four I don't think makes much of a difference the court speaks at the core as the court regardless of the vote maybe there's a different analysis for for highly fractured opinions of the court you know if there really isn't a majority at all and the justices are split every which way and one opinion ends up is controlling baby there's a different analysis for that I'm not even I'm not even quite sure of that but five to four nine to zero I think the rules of story decisis operate in the same way okay may I have thank you so much ma'am Jose Ramon Garcia Madrid Jose is a first-year law student secretary of out law and is interested in immigration law Jose yes I think good evening Justice Kagan so there is some speculation that justices particularly particularly in their comments that oral arguments and in their opinions are talking about more than just the case at hand so for example the unjust the understood subtext in the competing analyses of due process between Justice Scalia and justice Brennan and Burnham versus Superior Court so the question is to what extent should lawyers and the public read into this subtext I can't say I've thought about Burnham's since I was you know since I was a Civil Procedure professor so I'm going to ignore that part of the question all right don't ask me to help but if the question is are we do do we talk about things other than the issue at hand I think for most cases the issue at hand is quite enough thanks I mean I'm sure that there are times when there are there's something that sort of off stage that's affecting what we do in argument or in our opinions but I don't know I think it's hard enough just deciding the cases and I guess you know sometimes the cases I guess sometimes but you know for the most part I guess I would take us at our word that if we're deciding a case we're deciding a case and there's not some mystery decision that's driving the analysis I do think that when you started off by saying that the that the arguments you know I think you said weren't necessarily about the case that issue I would say that the arguments I guess I thought you were going in a bit of a different direction and it made me think that the arguments are often when you watch a Supreme Court argument we ask a lot of questions that are not really questions you know they're statements with a question mark it's like there's sort of speeches and then you raise your voice at the end of the sentence and I think that that's because you know the questions we ask really have an audience that's that's not just the lawyer at the podium but we're talking to each other and we're telling each other how we're thinking about a particular case and and that actually performs an important function on the court because we we don't talk about cases before argument we are oh it's only after argument that we get together and talk about cases and then we immediately start to sort of go around the table and vote so if you're one of the people like me who votes last or near to last it's actually pretty important to be able to have a forum where you can indicate how you feel about a subject before you get to the conference room and usually argument serves that purpose I mean we do it as a kind of there's there's somebody who's standing at the podium and and we're sort of directing our views to them but the views are really directed so the other people on the bench and and what what might appear in a transcript like a bunch of questions being directed to lawyers are better understood as conversation that the justices themselves are having prior to the first vote thank you may I have Peter Sohn Emil's please okay as a first-year law student participates in the Environmental Law Society and the silicon Flatiron student group Peter hello justice kagan you're so cool technology and social media technology and social media have exploded over the last several years what impact has this technological revolution had on the court and how it operates it said this is horrible yeah I'll qualify that I'm less than you might think so when when I when I clerked for the court I clerked for the court in 1987 and then it came back in 2010 so twenty three years later and in those twenty three years there had been this technological revolution communications revolution and and I got to the court and I thought it just has not touched the court at all the justices there we're still communica the way we we don't use we'd the Second Circuit the Second Circuit is a love with fax machines you know Oh the Second Circuit the judges on the Second Circuit literally communicate with each other through faxes and you might think that that's really funny except the the Supreme Court hasn't really gotten two faxes yet so the way we communicate with each other is we print out whatever it is we're right in whatever memo were right in and we have each of us has a person called a chambers aide and the Chamber's a and walks around the building and just delivers it you know in hardcopy and this kind of parchment like paper here are some good things about that you've we never send emails that we regret afterwards because we never send emails at all I mean some of us I think are perfectly proficient in the use of technology within our chambers but but not across chambers and when we go for example into the conference room nobody nobody brings laptops nobody brings any kinds of modern device except for one of us and I'm not going to name names whose phone continually goes on but for the most part it's a really a pen and paper kind of thing so is this terrible you know the court works remarkably well notwithstanding this is true and so I don't feel day-to-day that it's like our operations could be much better if if we started communicating with each other in different ways I mean with inner chambers our technology is perfectly adequate in terms you know and so that when I write an opinion and when my clerk's do stuff for me I mean it's it's it's all good I guess what what what strikes me about the technology question is just this is goes to this this question that I think I've kept coming back to about all the things that you have to keep in mind that you have to learn I mean if you wanted to put together a court of the people who were most proficient in new technology developed new technological developments or new scientific developments for that matter I doubt you would come up with the 9 of us I mean for one thing we're just too old you know and so so it puts an extra burden on us I think to recognize that to recognize that there's lots of new stuff that we don't know and to figure out how to learn about it before we make any mistakes and I hope we all feel that responsibility I think we do and I think that there are plenty of ways even for people to whom to all the stuff that you take for granted is a little bit of a second language even for those people to learn a lot about it and to be able to make good and wise decisions thank you we have three more questions Connor may the second-year law student who's a member of the Environmental Law Society silicon Flatiron student group and the international law student Association thank you hello thank you for being here um how do you see the rule and the composition of the judicial branch changing at all in response to changes in the legislative and executive landscape are you concerned at all about a more contentious legislature and a stronger executive and the effects of those pressuring the court further into the political thicket that justice Rankin fritter predicted well I don't know we've had a contentious legislature and a strong executive in this country for a while and and I'm not sure that the court whether it's more or less contentious or strong or less strong I don't think that that's the kind of thing that the did I do not think that the court should define its own role based on the fluctuations in what happens in the executive and the legislature which isn't to say that over long stretches of time developments in the political process surrounding us don't affect what the courts does of course it does but I wouldn't think that then the that on a more short-term basis that we should either kerub ourselves or you know either but become less aggressive or more aggressive based on what what happens to be happening at the at that moment in the political process I think we should look after our own business Thank You Chelsea Lorenz the third-year law student who's pursuing a career in public defense it's really wonderful to have you I know we're all very honored you've touched on this question already but it is the question I submitted so hopefully it allows you to expand upon that a little bit how do you feel the court will change or be affected by the increasing use of party affiliation in nominations and appointments to the bench is there a way to maintain the neutrality required by the position with the increasing polarization of party ideals okay I think I think we have talked about that and and I guess I would I think all of us wish that the the confirmation process was less politicized you know I think all of us have in our heads some golden age where Justice Scalia and Justice Ginsburg were confirmed to the court by 98 to 0 votes because everybody understood that even though they had extremely different views they were both brilliant and and they both were people of great integrity and and and and independence and wisdom and you know it's is that I mean all of us sort of look back at those times and say that's how the process should work and you know rather than these sort of pitched battles between parties where every nominee gets sent up and you know prays for a few votes from the the party that it's not the party of the president who appointed you know I got four or five I think Republican votes not very many and it's been like that for some for a considerable period of time yeah boy I'd have to be a smarter person to know how to get back to those days and a lot of a lot of water has been under the bridge that's the expression and you know in the end that's something for Congress to decide thank you um last but not least Jovan Quarles is a second year law student co-president of the black Law Students Association and a member of the Veterans Law Society so first thank you for being here so my question is you had a wonderful portion of clerking for justice thurgood marshall you described him as the greatest lawyer of the 20th century what was it like to clerk for him and what has been his impact on you and what was the most meaningful experience that you've had with him I think for sure he was the greatest lawyer of the 20th century in in in in two respects I mean at first I think if you asked about great lawyers it's like well who did the most justice in their lives and I don't know if anybody in the 20th century who did more justice as a lawyer then then Thurgood Marshall did [Music] and then he was just a phenomenal lawyer he was a lawyer the kind you don't you don't really see anymore I mean we've become a kind of very specialized profession so the people who do appellate work don't do trials and vice versa and the people who do civil cases don't do criminal cases and vice versa and he did everything he argued almost 20 cases before the Supreme Court won almost all of them but at the same time he would criss cross the the South the Jim Crow South you know stopping in these little towns with these in small court houses and and represent people who were being charged with criminal offenses you know mostly african-american defendants being tried by white juries and he would be their trial lawyer and then the next day he would go back up to the August halls of the Supreme Court and then the next day he would go down back down to Mississippi and and on and on and on until he broke the back of the Jim Crow system and and and he you could see why he was so good at all these different kinds of luring I mean he just had an ability to get to the heart of a problem to see sort of straight through to what was most important in any legal issue and and you know he kept his eyes on the prize for his entire career to use that expression I mean he didn't let himself be distracted he had a strategy for how he wanted to go about fighting the fight for racial equality and and so he was a strategic thinker but he could also do all the little stuff you know he was a he was a forest and a trees person I mean he was really quite remarkable in that way in blending qualities that very few people can contend my most the most amazing part of clerking for him was that in addition to everything else he was he was the world's best storyteller I've never heard anybody tell stories better he had all these voices that he did he was he was like a mimic and he did accents and voices and he did faces he had the most kind of mobile face and he was not embarrassed like all these crazy kind of expressions and and then he had the world's best stories and the world's most important stories and sometimes you know whether it was about his boyhood and segregated Baltimore or his time at at Howard law school where he met Charles Hamilton Houston and together they started really developing the strategy that that led to the eradication of Jim Crow or or all the stories that came out of his his his his time at the Legal Defense Fund stories about other civil rights leaders stories about presidents and Senators whom he had met and you know sometimes they were really sad stories but you also had this real comic bent and so it was a little bit like make you laugh make you cry and and you felt when you were a clerk with him that you were just getting you know something that you couldn't have gotten in however many books you read right which was this window into this crucially important part of American history and I think he knew that that's what he was given his clerks among other things you know he was giving them an education in the law of the kind that all Supreme Court justices give their clerks but he was also giving them in education and Amer in history and in and in education and what it means to do justice and and I hope I never forget those lessons [Applause] so this is the timer we have to say goodbye I do want to thank you from the bottom of my heart and on behalf of everybody here for your wisdom and your humor and for your time tonight it has been just a true joy I do want to thank some other folks as well who as you know it takes a village to pull off something like this and so we had a lot of villagers that worked really hard I really amazing people so let me just roll the credits real quick but I do want to thank folks who've worked on this Andrew Sorenson Melissa Schenk ter Yesenia Delgado Julia Roth georgette vigil Jennifer Sullivan Lauren DiMartino John Sabri Jane Thompson and nicole drain of course the mackey team who have been working hard in the student volunteers so thank you a round of applause for them as well they are so we do have a token of appreciation for you all right this is a special gift all right so first of all this is the ceramic vase is very special this was actually made by an artist in Boulder so a shout out to Sally spear the artist who made the vase and then in the vase these are paper flowers and we couldn't help ourselves because you love comic strips these were made of comic book strips right so you should see in here spider-man and some of your other friends okay are in the art in the vase I want to give a shout out to the artists who did this is Cynthia Carollo beautiful there there baby so we're hoping that you'll you'll have this in chambers or in your home and sort of think fondly of the time that you came here they call rock thank you so so much great fantastic so this ends our program again thank you so much we've had it was a pleasure to be here come back again we have a lot more questions for you so thank you

Channel: Colorado Law

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Length: 89min 37sec (5377 seconds)

Published: Wed Oct 23 2019